Plaintiffs allege an epic Wall Street conspiracy. They charge that the nation’s leading underwriting firms entered into illegal contracts with purchasers of securities distributed in initial public offerings (“IPOs”). Through these contracts and by other illegal means, the underwriting firms allegedly executed a series of manipulations that grossly inflated the price of the securities after the IPOs in the so-called aftermarket. Plaintiffs contend that the firms capitalized on this artificial inflation, profiting at the expense of the investing public.
Plaintiffs tell a compelling story and are not the first to tell it. Similar allegations have appeared in a separate class action, see In re Initial Pub. Offering Sec. Litig.,
The district court’s decision goes too far. The heart of the alleged anticompetitive behavior finds no shelter in the securities laws. Accordingly, we vacate and remand for further proceedings.
I
Essential to this appeal is a basic understanding of the securities underwriting process and certain manipulations of the process, most particularly the practice of tying excess consideration to an IPO securities allocation.
A
An underwriting firm provides underwriting services to issuers of securities. The most common delivery of those services is by firm-commitment agreements. 1 Thomas Lee Hazen, The Law of SeCURIties Regulation § 2.1[2][B], at 156 (5th ed.2005). The appeal of this type of agreement is certainty for the issuer: “The underwriting investment banker agrees that on a fixed date the corporation will receive a fixed sum for a fixed amount of its securities.” Statement of the Commission on the Problem of Regulating the “Pegging, Fixing and Stabilizing” of Security Prices Under Sections 9(a)(2), 9(a)(6), and 15(c)(1) of the Securities Exchange Act, Exchange Act Release No. 2446 (March 18, 1940), 11 Fed.Reg. 10,971, 10,972 (Sept. 27, 1946) (“1940 Statement”). The underwriting agreement thus removes “factors of uncertainty” for the issuer, see id., and transfers to the underwriter the risk of any inability to sell an issue, see Going Public and Listing on the U.S. SecuRities MARKETS, NASD 167.
Syndicates emerged in the first half of the twentieth century as an essential means by which underwriters could manage the risks inherent in underwriting. See generally United States v. Morgan,
A lead underwriter in a syndicate must assess the appropriate issue quantity and pricing for the IPO. See Commission Guidance Regarding Prohibited Conduct in Connection with IPO Allocations; Final Rule, Securities Act Release No. 8565, Exchange Act Release No. 51,500 (Apr. 7, 2005), 70 Fed.Reg. 19,672, 19,674 & n. 30 (Apr. 13, 2005) (“2005 Guidance Statement”). This is a difficult task, see 2 Hazen, supra § 6.3[1], at 23-24, in which the lead underwriter is aided in part by “book-building”:
When used, the IPO book-building process begins with the filing of a registration statement with an initial estimated price range. Underwriters and the issuer then conduct “road shows” to market .the offering to potential investors, generally institutions. The road shows provide investors, the issuer, and underwriters the opportunity to gather important information from each other. Investors seek information about a company, its managements and its prospects, and underwriters seek information from investors that will assist them in determining particular investors’ interest in the company, assessing demand for the offering, and improving pricing accuracy for the offering. Investors’ demand for an offering necessarily depends on the value they place, and the value they expect the market to place, on the stock, both initially and in the future. In conjunction with the road shows, there are discussions between the .underwriter’s sales representatives and prospective investors to obtain investors’ views about the issuer and the offered securities, and to obtain indications of the investors’ interest in purchasing quantities of the underwritten securities in the offering at particular prices.... By aggregating information obtained during this period from investors with other information, the underwriters and the issuer will agree on the size and pricing of the offering, and the underwriters will decide how to allocate the IPO shares to purchasers.
2005 Guidance Statement, 70 Fed.Reg. at 19,674-75 (footnote omitted). Underwriters thus use this process to collect indica
B
The SEC has noted that the book-building process can become a locus of IPO and IPO-aftermarket manipulation by syndicate members.
Underwriters also have incentives to manipulate the price of securities in the aftermarket. Again, competition is one force at play: “Underwriters have an incentive to artificially influence aftermarket activity because they have underwritten the risk of the offering, and a poor aftermarket performance could result in repu-tational and subsequent financial loss.”
Not all underwriter manipulations are prohibited: the securities regime tolerates “a little price manipulation” in order to further other goals. Strobl v. New York Mercantile Exch.,
[t]o effect either alone or with one or more other persons any series of transactions for the purchase and/or sale of any security registered on a national securities exchange for the purpose of pegging, fixing, or stabilizing the price of such security in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
Significantly, from its earliest statements on stabilization, the SEC has recognized that permissible forms of stabilization are limited to those attempts to maintain price levels of a security or to retard a decline in a security’s price. In 1954, for instance, the Commission proposed new stabilization regulations that it viewed as “a formulation of principles which historically have been applied in considering questions relating to manipulative activity and stabilization in connection with a distribution.” Manipulative and Deceptive Devices and Contrivances, 19 Fed.Reg. 2986, 2986 (May 22, 1954) (“1954 Proposed Rules”). These regulations limited permissible stabilizing bids to those with “the purpose of preventing or retarding a decline in the open market price of [a] security.” Id.; see Manipulative and Deceptive Devices and Contrivances, 20 Fed.Reg. 5075 (July 15, 1955) (adopting the 1954 Proposed Rules as 17 C.F.R. §§ 240.10b-6, 240.10b-7, and 240.10b-8). Likewise, in 1959, while issuing proposed amendments, the Commission commented, “The term ‘stabilizing’ has generally been accepted to mean the placing of any bid or the effecting of any purchase ... for the purpose of preventing or retarding a decline in the open market price of a security.” Manipulative and Deceptive Devices and Contrivances, Notice of Proposed Rule Making, 24 Fed.Reg. 9946, 9947 (Dec. 9, 1959) (“1959 Proposed Rules”). And, alongside a 1991 proposed rule, the Commission cautioned that “stabilization does not contemplate transactions in excess of those required to prevent or retard a decline in the market price, or those which raise the market price of a security .... ” Stabilizing to
Permissible stabilization activities are often contrasted with activities raising prices, which are prohibited under section 9(a)(2) of the Exchange Act,
Among the impermissible manipulative practices regulated by the SEC is a general category of relationships between underwriters and prospective purchasers termed “tie-ins.” “A ‘tie-in agreement’ in the securities offering context generally refers to requiring either implicitly or explicitly that customers give consideration in addition to the stated offering price of any security in order to obtain an allocation of the offered shares.” 2004 Proposed Amendments, 69 Fed.Reg. at 75,783 n. 95. Thus, the broadest category of tie-in arrangements includes all agreements requiring consideration from purchasers above the offering price. These have been termed quid pro quo arrangements. See, e.g., Self-Regulatory Organizations, Notice of Filing of Proposed Rule Changes, Exchange Act Release No. 50,896 (Dec. 20, 2004), 69 Fed.Reg. 77,804, 77,805-06, 77,807, 77,810 (Dec. 28, 2004) (“2004 SRO Notice”). The quid pro quo consideration could, for instance, require customers to participate in another offering, including an offering in which supply exceeds de
In exchange for receiving an IPO allocation, certain tie-in arrangements require customers to place orders for aftermarket shares of the same security offered in the IPO. See 2005 Guidance Statement, 70 Fed.Reg. at 19,672-73. These sorts of arrangements — sometimes described as arrangements to “pre-sell the aftermarket”
A variation on tie-in agreements effectuating a pre-sale of the aftermarket are arrangements called “laddering.” See, e.g., 2005 Guidance Statement, 70 Fed.Reg. at 19,674 & n. 29; “NASD Board Approves Proposed Conduct Rules for IPO Activities,” NASD Press Room (NASD July 25, 2002), available at http://www.nasd. com/ web/idcp lg ?IdcService=SS _GET_PAGE & ss DocName=NASDW_0 02921. Laddering has been defined “as inducing investors to give orders to purchase shares in the aftermarket at pre-arranged, escalating prices in exchange for receiving IPO allocations .... ” 2005 Guidance State
II
With this background in mind, we turn to plaintiffs’ complaints. The present appeal is the product of repeated consolidation. By an order entered November 1, 2001, the district court consolidated nine separate actions into a proceeding captioned “In re Initial Public Offering Antitrust Litigation” and appointed five law firms to lead the litigation. The resulting complaint (the “consolidated complaint”) alleged violations of the Sherman Act and state antitrust laws. Along with that consolidated class action, the district court considered a separate class action captioned “Pfeiffer v. Credit Suisse First Boston Corp.” See IPO Antitrust Litig.,
A
The plaintiffs in the consolidated complaint represent two groups of injured parties: direct IPO purchasers and aftermarket purchasers. The direct IPO purchasers claim to have paid anticompetitive charges for the securities of certain technology-related companies (the “class securities”).
The aftermarket purchasers claim to have purchased the class securities at prices intentionally “inflated” by defendants. Defendants allegedly inflated aftermarket prices by executing laddering agreements with direct purchasers, pre-committing their analysts to issue positive reports following the offering (“booster shots”), and “other overt acts which furthered the conspiracy’s objectives by inflating the prices of [cjlass [sjecurities in the aftermarket.” Consolidated Am. Compl. ¶ 61. The aftermarket purchasers claim injury from the purchase of artificially inflated securities.
Both groups of plaintiffs attribute their injuries to violations of section 1 of the Sherman Act and various state antitrust provisions.
B
The class action complaint in Pfeiffer asserts that certain underwriter and institutional defendants violated section 2(c) of the Robinson-Patman Act.
The purported “bribes” consisted of underwriter promises to make “exceptionally large” allocations of IPO securities in return for the institutional defendants’ promises to comply with rules set by the underwriter defendants for the resale of the securities and to divide profits with them. Pfeiffer Compl. ¶¶ 74-75. The institutional defendants allegedly made several agreements: (1) that they would not sell the securities until ordered to do so by the underwriter defendants; (2) that they would give a third of profits made from the allocation to the underwriter who made the allocation; and (3) that they would make additional large aftermarket purchases of the securities and not sell those additional purchases until ordered to do so by the syndicate. Defendants — both the under
The complaint alleges that these actions had the effect of sustaining prices and driving them upwards. “When the market price for the ... security had reached a high level and been sustained at the high level as long as it could, the syndicate departments for the Underwriter Defendants notified the Institutional Defendants that they were free to sell.” Pfeiffer Compl. ¶ 108. The underwriter defendants then calculated the share of the profit due and collected those profits by receiving major business from the institutional defendants regarding unrelated securities and by charging the institutional defendants unusually large commissions.
C
Defendants moved to dismiss the complaints pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. They argued that dismissal was proper because federal securities laws repealed the federal antitrust laws by implication and, moreover, preempted state antitrust laws. Defendants presented the immunity question as a choice between two regimes. The first, the antitrust laws, operate under a “competition-only standard.” Tr. 12. The operation of the second, the securities laws, is reflected in the SEC’s mandate to consider competition with the protection of investors, efficiency, and capital formation.
The plaintiffs viewed defendants’ arguments as “all red herrings.” Tr. 81. They urged that the district court did not have to usurp the policy position of the SEC or engage in rulemaking or line-drawing because defendants’ misconduct had always been prohibited by the securities laws, was
The district court granted the motion to dismiss. See id. at 499, 524-25. The court noted that the SEC explicitly permits much of the background conduct alleged in the complaints, including, most clearly, the syndicate system, id. at 506-08, the “road show” process, id. at 508-09, and communications among underwriters via the NASD and securities exchanges, id. at 509-10. The court thoroughly canvassed the SEC’s relevant regulatory authority' — ■ including its exemptive powers — and the Commission’s prior consideration of rules targeting the type of misconduct alleged. Id. at 510-21. The court held that implied immunity was appropriate because “the SEC, both directly and through its pervasive oversight of the NASD and other SROs [self-regulatory organizations
Ill
The focus of this appeal is defendants’ assertion of implied immunity. Thus, a review of the law of implied immunity is in order.
A
The basic contours of implied antitrust immunity jurisprudence are well-established. The analysis begins with the “cardinal principle of construction that repeals by implication are not favored.” Silver,
Our starting point is Silver v. New York Stock Exchange, a decision resolving an action by Harold Silver against the NYSE.
The Silver Court examined the tension between the free competition principles animating the antitrust statutes and “the public policy of self-regulation,” id. at 367,
Silver might be read to suggest the general principle that agency power to review — or, more specifically, to approve— private conduct immunizes that conduct from the antitrust laws, especially, perhaps, when the reviewing agency is concerned with competition. But Supreme Court precedents following Silver — in particular, United States v. Philadelphia National Bank,
Philadelphia National Bank, decided the same year as Silver, most clearly refutes this attractively simple reading of Silver. There, the Court refused to find implied antitrust immunity in a provision of the Bank Merger Act directing the Comptroller of the Currency to review and approve certain mergers in the public interest and, in so doing, to consider “the effect of the transaction on competition (including any tendency toward monopoly).”
Instead, Justice Brennan, writing for the Court, explained that the Bank Merger Act did not give rise to a sufficiently strong implication of repeal. The Court emphasized that Congress in other settings had expressly given agencies the power to grant immunity from the antitrust laws. See id. at 350 & n. 27,
Although the Comptroller was required to consider effect upon competition in passing upon appellees’ merger application, he was not required to give this factor any particular weight; he was not even required to (and did not) hold a hearing before approving the application; and there is no specific provision for judicial review of his decision....
Nor did Congress, in passing the Bank Merger Act, embrace the view that federal regulation of banking is so comprehensive that enforcement of the antitrust laws would be either unnecessary, in light of the completeness of the regulatory structure, or disruptive of that structure.... The fact that the banking agencies maintain a close surveillance of the industry with a view toward preventing unsound practices that might impair liquidity or lead to insolvency does not make federal banking regulation all-pervasive, although it does minimize the hazards of intense competition.
Id. at 351-52,
Yet, the Court refused to find implied antitrust immunity when a case concerning public utility regulation arose. See Otter Tail Power Co.,
Thus, in- two cases involving agency review of private behavior- — in which neither, unlike Silver, involved the actions of a registered exchange- — the Court declined to find implied immunity despite agency considerations of competition. Both cases turned, at least in part, on the Court’s stated inability to conclude that Congress had intended to immunize the reviewed acts.
The “different case” that Silver predicted finally came in Gordon v. New York Stock Exchange, an action concerning, like Silver, registered exchanges and specifically challenging the fixed-rate commissions of the NYSE and the American Stock Exchange (“AMEX”).
Gordon of course began its appellate journey in the Second Circuit. See Gordon v. New York Stock Exch.,
The Supreme Court adopted this approach. Though the Court began by distinguishing Silver, it refused to equate SEC review over the challenged exchange conduct with implied immunity. See Gordon,
Four interrelated insights informed the Gordon Court’s conclusion that the Exchange Act “was intended by the Congress to leave the supervision of the fixing of reasonable rates of commission to the SEC.” Id. at 691,
Since the Exchange Act’s adoption, and primarily in the last 15 years, the SEC has been engaged in thorough review of*153 exchange commission rate practices. The committees of the Congress, while recently expressing some dissatisfaction with the progress of the SEC in implementing competitive rates, have generally been content to allow the SEC to proceed without new legislation.
Id. at 682,
On the same day that Gordon was decided, the Court handed down the final opinion in its trilogy of implied immunity securities cases, United States v. National Ass’n of Securities Dealers (NASD),
The Supreme Court agreed that immunity was implied in section 22(f). Id. at 720-22, 729-30,
A separate count in NASD charged a horizontal conspiracy between the NASD and its members to prevent the growth of a secondary market in mutual fund shares. Id. at 701-02, 730,
The Court noted that the Government’s withdrawal of its challenge to the NASD rules was “prudent.” Id. at 732,
Not only does the Maloney Act [ (i.e., the legislation that supplemented the SEC’s regulation of the over-the-counter markets by providing a system of cooperative self-regulation through voluntary associations of brokers and dealers, such as the NASD) ] require the SEC to determine whether an association satisfies the strict statutory requirements of that Act and thus qualifies to engage in supervised regulation of the trading activities of its membership, it requires registered associations thereafter to submit for Commission approval any proposed rule changes. The Maloney Act additionally authorizes the SEC to request changes in or supplementation of association rules, a power that recently has been exercised with respect to some of the precise conduct questioned in this litigation. If such a request is not complied with, the SEC may order such changes itself.
The SEC, in its exercise of authority over association rules and practices, is charged with the protection of the public interest as well as the interests of shareholders, and it repeatedly has indicated that it weighs competitive concerns in the exercise of its continued supervisory responsibility.
Id. at 732-33,
Finally, the NASD Court turned to the alleged horizontal agreements between the membership by which members sought to encourage restrictions on the secondary market. Id. The activities involved — although not authorized by the Investment Company Act, id. at 730,
B
Much of the remaining judicial action in this area has been here at Foley Square. In addition to our opinion in NYSE, we have faced the question of implied immunity primarily in five cases. The first was Northeastern Telephone Co. v. American Telephone and Telegraph Co. [ (“AT & T) ],
We rejected this defense. Id. Writing for the panel, Judge Kaufman recognized the “conflict between the Sherman Act’s mandate of robust competition and the ‘public interest’ standard underlying governmental regulation of business activity.” Id. That conflict triggered, but did not resolve, an implied immunity analysis. “The touchstone of this analysis,” he emphasized, “is Congressional intent.” Id. The Court made several important observations. First, the enabling act and its legislative history gave no indication of an intent to repeal. Id. at 83. Second, the Sherman Act did not “expressly authorize the FCC to approve protective coupler designs that unreasonably restrict competition” and thus was distinguishable from the provision of the Exchange Act considered in Gordon that was precisely targeted at fixing commission rates, an anticompeti-tive activity. Id. Expanding on this point, the Court stated, “While this observation is unsurprising, since protective couplers were unknown [at the time the enabling act was passed], it does rebut appellants’ argument that immunity may be inferred on the basis of specific Congressional authorization.” Id. Third, the Court reviewed the history of FCC regulation and emphasized that, although the agency clearly could have approved the couplers, the FCC had never granted its approval. Id. at 83-84. Therefore, we refused to immunize the tariff.
We considered implied antitrust immunity again in Strobl v. New York Mercantile Exchange,
A more difficult question arose in Finnegan v. Campeau Corp.,
We explained that the Williams Act was directed at the “twin aims” of, first, maintaining neutrality between bidders and target companies and, second, protecting target shareholders by requiring that bidders make certain disclosures. Id. at 829. The Williams Act created disclosure requirements by amending section 14(d) of the Exchange Act. Id. These requirements were imposed on “person[s],” and the Act defined “person” to include any “group” acting with the purpose of acquiring securities. Williams Act § 3, 82 Stat. 456 (amending Exchange Act § 14(d)(1)-(2) (codified as amended at 15 U.S.C. § 78n(d)(1)-(2))). The Williams Act also included an antifraud provision, allowing the SEC to regulate tender offers. See Finnegan,
We concluded that the Williams Act impliedly repealed the antitrust laws with regard to the group bidding engaged in by Macy’s and Campeau. Id. at 828. Three types of considerations informed our holding. The first centered on the structure of the Williams Act. Concentrating on amended section 14(d) of the Exchange Act, we found that “the logical implication” of the Act’s definition of person to include a group was that the Act “contemplate[d] agreements between bidders” — the very sort of agreement which, according to Finnegan’s complaint, created antitrust problems. Id. at 829-30. Thus, we concluded, “[i]n order for § 14(d) ... to function as intended, such agreements [could not] be subject to suit under the antitrust laws ....” Id. at 830. We then turned to legislative history. We found that permitting joint bids, as long as they were disclosed, comported with the Williams Act’s posture of neutrality between bidders, shareholders, and target company management. Id. at 831-32. Finally, we looked at the regulatory history. Joint bids were a common practice, and the SEC had permitted such bids so long as they were disclosed. Id. at 830-31. In light of all these considerations, we stated that, although the Williams Act would “not foreclose all antitrust claims arising in the context of market manipulation,” it had implicitly repealed the Sherman Act in Finnegan’s case. Id. at 828.
Our next case concerning antitrust immunity was Friedman v. Salomon/Smith Barney, Inc.,
We agreed with the defendants that the Exchange Act had impliedly repealed section 1 of the Sherman Act with regard to the alleged conduct. Id. at 803. As we noted, section 9(a)(6) expressly provided for regulation of stabilization practices. Id. at 802. Moreover, the SEC had long recognized certain stabilization practices as legitimate, including anti-flipping restrictions, . and the restrictions were still permissible under SEC regulations. Id. at 801-03. Although the SEC had published a comprehensive review of its trading practice rules and posed certain questions about flipping, it did not choose to prohibit the anti-flipping restrictions in question. Id. at 801-02. This reflected a regulatory approach stretching back to 1940 when an SEC release indicated that anti-competitive stabilization practices would be lawful in the absence of Commission regulation. Id. at 802. In these circumstances, we found- immunity implied in the Exchange Act.
The most recent implied immunity case in this circuit is In re Stock Exchanges Options Trading Antitrust Litigation,
We accepted the defendants’ claim of immunity. Id. at 150. Our opinion highlighted the regulatory history and extensive interplay between the SEC and the exchanges with regard to the exclusivity of options listing. We noted that the SEC had “at times encouraged multiple listing and at times disapproved of that practice,” id. at 150; see id. at 148 (“[T]he Commission has taken varied positions with respect to the appropriateness of multiplicity .... ”), including, for a time, approving exchange plans “for the single, or exclusive, listing of any new equity option,” id. at 140. Cf. Gordon,
The central question in the case was whether antitrust immunity was an available defense when the SEC changed its position to no longer permit exclusive listings. Importantly, we recognized the principle — consistent with the idea that antitrust repeal depends on congressional intent — that it was entirely possible for a practice to be currently prohibited by the SEC even though Congress impliedly repealed the antitrust laws with regard to it. Id. at 149. An SEC decision to prohibit certain activities could not logically strip those activities of immunity; if Congress intended to repeal the antitrust laws with regard to exclusive options listings, the SEC’s eventual prohibition of that practice would not alter the original intent. Id. at 148-50.
C
The cases from the Supreme Court and this Court on implied antitrust immunity yield several principles. As an initial matter, we can parse the operation of immunity into “two narrowly-defined situations.” Id. at 147 (quoting Northeastern Tel. Co.,
1
The first ground on which a court might find an implied repeal of the antitrust laws is “the vague ground of pervasive regulation.” Northeastern Tel. Co.,
Few cases have found an implied repeal on this “vague ground.” Northeastern Tel. Co.,
But “pervasive regulation” may also be derivative. For instance, in NASD the Supreme Court concluded that horizontal agreements among competing NASD members to encourage vertical restraints in the mutual fund secondary market were entitled to implied immunity because the vertical restraints imposed by these horizontal agreements — which did not have the purpose or effect of restraining competition among funds — had been consistently approved by the SEC. See NASD,
2
The context in which implied immunity most often operates is best seen as one of potential specific conflict. It has been defined broadly as “when an agency, acting pursuant to a specific Congressional directive, actively regulates the particular conduct.” In re Stock Exchs. Options Trading Antitrust Litig.,
As suggested by our label — potential specific conflict — precedents have established that a potential conflict between the antitrust laws prohibiting a specific activity on the one hand and a regulatory regime compelling or permitting that activity on the other is a necessary component
Conflict, however, is simply the essential starting point, and cases regarding potential specific conflicts have remained wedded to the idea that the touchstone of our analysis is, quite necessarily, inquiry into whether there is any evidence of an implicit congressional intent to repeal the antitrust laws. See Northeastern Tel. Co.,
The second insight is that a regulatory structure empowering an agency to compel action prohibited by the antitrust laws may imply that the antitrust laws are repealed with regard to that particular action. See Gordon,
The third recurring insight is that immunity may be appropriate if applying the antitrust laws would moot a statutory provision and rob the SEC of some grant of discretion. See Gordon,
Finally, our cases have consistently looked to a regulatory history permitting, at some point, the challenged anticompetitive conduct. See, e.g., In re Stock Exchs. Options Trading Antitrust Litig.,
At the close of this arduous review of the law, it is important to recall that an implied immunity analysis always begins with the notion that repeal by implication is disfavored. See Silver,
D
One additional note is in order. Silver teaches that the securities statutes may alter the antitrust analysis in an antitrust defendant’s favor even when those statutes imply no repeal of the antitrust laws. After the Silver Court denied the NYSE the defense of implied immunity, see
Thus, “[j]ust as regulatory context may in [some] cases serve as a basis for implied immunity, it may also be a consideration” in the application of antitrust law. Verizon Communications,
We need not expound on the extent to which any of these or analogous principles would here preclude or qualify antitrust liability in the absence of implied immunity; the issue is not before us. But we highlight the principle endorsed elsewhere that, as a general matter, “the antitrust laws are not so inflexible as to deny consideration of governmental regulation,” Mid-Texas Communications Sys.,
[AJntitrust courts can and do consider the particular circumstances of an industry and therefore adjust their usual rules to the existence, extent, and nature of regulation. Just as the administrative agency must consider the competitive premises of the antitrust laws, the antitrust court must consider the peculiarities of an industry as recognized in a regulatory statute.
IA AREeda & Hovenkamp, supra, at 12. These authorities “are not saying either that the antitrust laws do not apply in th[e particular] regulatory context, or that they somehow apply less stringently [t]here than elsewhere. Rather, [they] are saying that, in light of regulatory rules, constraints, and practices,” certain behavior classically deemed anticompetitive might not violate the antitrust laws. Town of Concord v. Boston Edison Co.,
We make this note because the flexibility reflected in cases like Silver, Pilónetele, and Verizon Communications lowers the stakes of any implied immunity evaluation. Tension may often develop between traditional antitrust analysis and the operation of a regulatory regime, even where the statute creating the regime carries no implication of a repeal of the antitrust laws. See, e.g., id. at 411-15,
IV
Against this backdrop of implied antitrust immunity jurisprudence, defendants advance two theories of implied immunity. First, they argue that immunity should be implied because the SEC has jurisdiction over the alleged conduct, the SEC has actively exercised its authority to
A
We begin with defendants’ argument that a potential specific conflict necessitates immunity.
1
At the threshold, we are presented with a question of appellate practice. The issue of an implied immunity of this sort was the focal point of the briefing and argument in these cases, but plaintiffs have presented primarily an interpretation of the case law extending antitrust immunity over a broader set of conduct than we find supported by logic and precedent. Specifically, they suggest that immunity applies to whatever conduct the SEC could permit under its regulatory regime and therefore that immunity is inappropriate here because the SEC lacks the power to approve the alleged tie-in arrangements and conspiracies. Thus, they would have us resolve the question of the exact scope of the SEC’s authority. We do not find it necessary to do so. Although we would agree with plaintiffs that the SEC must have authority to permit conduct before immunity of this sort attaches to it, we do not agree that, in the common case, the authority to permit, alone, will establish that a statute has impliedly repealed the antitrust laws. Hence, we would turn to a legal framework more favorable to plaintiffs than the doctrine they have pressed. Our initial concern is whether it is proper to look past plaintiffs’ apparent concession as to the operative doctrinal framework and in turn whether to apply the proper principles of law. It is.
First, this Court unquestionably has the power to do so. It is well-established that “once an issue or claim is properly before a court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the
Second, ignoring plaintiffs’ arguable concession is particularly apt here. To apply the immunity doctrine properly would not introduce a separate legal issue, see, e.g., Virgilio v. City of New York,
We simply find that the arguments on both sides proceed from fundamental, if understandable, misinterpretations of applicable precedents. In these circumstances, we refuse to apply the parties’ false premises and to engage in the delicate task of setting the contours of SEC power. For us, it would be inappropriate to allow implied immunity — a quite complicated issue with few guiding precedents in this Circuit — to “vary from case to case depending on concessions.” Snider v. Melindez,
2
The parties’ dispute, as has been suggested, centers on the scope of SEC power. Defendants forcefully argue, and the district court’s opinion masterfully demonstrates, that the SEC has unquestionable jurisdiction over the tie-in agreements underlying plaintiffs’ complaints. See IPO Antitrust Litig.,
We need not resolve the bounds of SEC authority. Even if a specific potential conflict could be established, the crux of the implied immunity claim would remain: demonstration that Congress clearly intended a repeal of the antitrust laws. See Nat’l Gerimedical Hosp. & Gerontology Ctr.,
First, there is no legislative history indicating that Congress intended to immunize anticompetitive tie-in arrangements. That fact alone is not determinative, but it does rebut any argument that immunity could be inferred from a specific congressional authorization. Cf. Northeastern Tel. Co.,
Second, this is not a case, like Gordon or In re Stock Exchanges Options Trading Antitrust Litigation, where the securities regime creates the potential for irreconcilable mandates. Quite simply, neither defendants nor the SEC contend that the Commission could compel the anticompeti-tive conduct the antitrust laws would prohibit. Whereas the Commission might have the power to impose fixed commission rates, see Gordon,
Third, defendants fail to identify a single provision, sentence, phrase, or word within the securities laws that would be “rendered] nugatory” by application of the antitrust laws. See Gordon,
Finally, in every case in the securities context in which this Court or the Supreme Court has ever found implied antitrust immunity, the courts have done so in the wake of SEC authorization — whether past or present — of the specific anticom-petitive behavior. Here, however, it is undisputed that “the Commission has never authorized tying and laddering ... [or]
We find no other indication of congressional intent to repeal the antitrust laws and immunize IPO tie-in agreements. Accordingly, we reject defendants’ argument that implied antitrust immunity arises from a potential specific conflict between the antitrust laws and the securities laws.
B
Defendants also press a “pervasiveness” claim as a route to implied immunity. The district court characterized the SEC’s authority over the anticompeti-tive conduct alleged in the complaint as “pervasive” but declined to hold that implied immunity was proper “under the NASD scenario.” IPO Antitrust Litig.,
Defendants misread NASD. As we have explained, the Court’s “pervasiveness” holding in NASD included two immunity considerations: one arising directly from the particular “pervasive” regulatory relationship between the SEC and the NASD, NASD,
Furthermore, defendants’ attempt to analogize their relationship with the SEC to that at play in NASD falls far short. While it is true that both cases present extensive SEC regulation over the alleged misconduct, there is a significant distinction between who is being regulated and why. The NASD Court noted that the delegation of “pervasive supervisory authority” to the SEC suggested that Congress intended to lift the ban of the Sherman Act for association activities approved by the SEC. See NASD,
Indeed, the NASD and the SEC share a relationship that is quite different from SEC regulation of private business activities. The NASD itself serves as a semiprivate regulator over the complex and unique securities industry but does so under the ever-watchful and omnipresent eye of the SEC. The SEC’s authority over the NASD allows the Commission to review, approve, and order changes in the organization’s rules. Id. at 732-33,
At its core, defendants’ pervasiveness argument is really that the law of antitrust must yield to the complexities of securities regulation in light of the SEC’s substantial powers to regulate underwriter misconduct. The district court implicitly adopted this position, stating:
[T]he SEC, through application of its broad regulatory authority over the spectrum of conduct related to securities offerings, is empowered to regulate the conduct alleged by ... [pjlaintiffs. It is this sweeping power to regulate that spawns the potential conflict with the antitrust laws that, under Friedman and Stock Exchanges Options, requires a finding of implied immunity.
IPO Antitrust Litig.,
The claim of implied immunity in this case is, in many ways, unlike any we have seen. Tie-in agreements are recognized as means of dangerous manipulation, and there is no indication that Congress contemplated repealing the antitrust laws to protect them. Thus, defendants insist that the SEC could exercise powers — powers the agency refuses to recognize — to immunize conduct that neither Congress nor the agency has ever contemplated permitting.
There may be reasons why Congress might choose to immunize such conduct. The SEC and defendants have vigilantly reminded us that the securities markets in toto might be better entrusted to an expert agency than to the federal courts. While we might agree, we do not have the responsibility for making national policy. Congress knows how to immunize regulated conduct from the antitrust laws. To date, it has not done so here either expressly or impliedly. Construing the statutes as written, we find no repeal.
Y
One issue remains. The district court determined that “reason and common sense compel the conclusion that the same conduct that is immune from Sherman Act antitrust scrutiny must also be immune from state antitrust scrutiny.” IPO Antitrust Litig.,
VI
For the reasons stated above, the district court’s judgment of November 6, 2003 is vacated, and the case is remanded for further proceedings consistent with this opinion.
Notes
. See, e.g., SEC v. Goldman Sachs & Co., SEC Litig. Release No. 19,051 (Jan. 25, 2005); SEC v. Morgan Stanley & Co., Litig. Release No. 19,050 (Jan. 25, 2005); SEC v. J.P. Morgan Sec., Inc., SEC Litig. Release No. 18,385 (Oct. 1, 2003); SEC v. Robertson Stephens, Inc., SEC Litig. Release No. 17,923 (Jan. 9, 2003); SEC v. Credit Suisse First Boston Corp., SEC Litig. Release No. 17,327 (Jan. 22, 2002). See generally Commission Guidance Regarding Prohibited Conduct in Connection with IPO Allocations; Final Rule, Securities Act Release No. 8565, Exchange Act Release No. 51,500 (Apr. 7, 2005), 70 Fed. Reg. 19,672, 19,672-73 (Apr. 13, 2005) (highlighting recent abuses).
. The In re Initial Public Offering Antitrust Litigation plaintiffs allege violations of section 44-1401 et seq. of the Arizona Revised Statutes, section 17200 et seq. of the California Business and Professional Code, section 28-4503 et seq. of the District of Columbia Annotated Statutes, section 501.201 et seq. of the Florida Statutes, section 50-101 et seq. of the Kansas Statutes Annotated, section 51:137 et seq. of the Louisiana Revised Statutes, section 1101 et seq. of title 10 of the Maine Revised Statutes Annotated, chapter 93A of the Massachusetts Annotated Laws, section 445.773 et seq. of the Michigan Compilation of Laws Annotated, section 325D.52 et seq. of the Minnesota Statutes, section 75-21-1 et seq. of the Mississippi Code Annotated, section 598A et seq. of the Nevada Revised Statutes Annotated, section 56:9-1 et seq. of the New Jersey Antitrust Act, section 57-1-1 et seq. of the New Mexico Statutes Annotated, section 75-1
. Thus in 1906, when Goldman, Sachs & Co. desired to enter the underwriting business and was unable to raise enough capital to do so, Henry Goldman convinced Philip Lehman to share the risk, and together Goldman, Sachs & Co. and Lehman Brothers obtained sufficient capital to finance United Cigar Manufacturers (later named the General Cigar Co.). See Morgan,
.
Typically, the principal underwriters will sign the firm-commitment underwriting agreement. These managers or principal underwriters in turn contact other broker-dealers to become members of the underwriting group who are to act as wholesalers of the securities to be offered. In many instances the securities distribution network will include the use of a selling group of other investment bankers or brokerage houses. Members of the selling group generally do not share the underwriters' risk and are thus retailers who are compensated with agents’ or brokers’ commission rather than by sharing in the underwriting fee.
1 Hazen, supra § 2.1 [2][B], at 156; cf. Review of Antimanipulation Regulation of Securities Offerings, Securities Act Release No. 7057, Securities Exchange Act Release No. 33,924 (Apr. 25, 1994), 59 Fed.Reg. 21,681, 21,686 (Apr. 26, 1994) ("A firm commitment underwriting typically involves a group of underwriters, represented by one or more managing underwriters, an underwriting group, and a number of 'selling group’ members.”).
. The aftermarket is the period of trading commencing after the conclusion of the period of distribution of a security. See 2005 Guidance Statement, 70 Fed.Reg. at 19,672 n. 1. Generally speaking, the aftermarket period follows the termination of formal syndicate activity, also termed the "breaking of the syndicate." Trading Practices Rules Concerning Securities Offerings, Proposed Rules, Securities Act Release No. 7282, Exchange Act Release No. 37,094 (Apr. 11, 1996), 61 Fed.Reg. 17,108, 17,124 (Apr. 18, 1996).
. See Friedman v. Salomon/Smith Barney, Inc.,
."Hot issues" are securities "that generate a good deal of buying interest.” 2 Hazen, supra § 6.0, at 1-2. "In 'hot' IPOs, investor demand significantly exceeds the supply of securities in the offering and the stock trades at a premium in the immediate aftermarket.” 2005 Guidance Statement, 70 Fed.Reg. at 19,672 n. 5.
. See, e.g., 1940 Statement, 11 Fed.Reg. at 10,974 ("Stabilization, it must be recognized, is now an integral part of the American system of fixed price security distribution.”); Reports on Stabilizing Activities, 21 Fed.Reg. 501 (Jan. 21, 1956); Reports on Stabilizing Activities, 21 Fed.Reg. 2787 (Apr. 28, 1956); Manipulative and Deceptive Devices and Contrivances, Notice of Proposed Rule Making, 21 Fed.Reg. 9983 (Dec. 14, 1956); Reports on Stabilizing Activities, Notice of Proposed Rule Making, Exchange Act Release No. 9605, 37 Fed.Reg. 10,960 (June 1, 1972); Presentation of Records, Reports, and Forms for Reports on Stabilizing Activities, Exchange Act Release No. 9717 (Aug. 15, 1972), 37 Fed.Reg. 17,383 (Aug. 26, 1972); Amendments Relating to Reports of Stabilizing Transactions, Exchange Act Release No. 18,983 (Aug. 19, 1982), 47 Fed.Reg. 37,560 (Aug. 26, 1982); Trading Practices Rules Concerning Securities Offerings, 61 Fed.Reg. at 17,123-25.
. The 1940 Statement explained that section 9(a)(2) prohibited certain “pool manipulations.” 1940 Statement, 11 Fed.Reg. at 10,-975-76.
. In 1974, the SEC proposed a rule that would expressly prohibit these aftermarket tie-in arrangements. See Certain Short Selling Of Securities and Securities Offerings, Exchange Act Release No. 10,636 (Feb. 11, 1974), 39 Fed.Reg. 7806, 7806-07 (Feb. 28, 1974) ("1974 Rule Proposal”); Certain Manipulative Practices in Public Offerings, Supplemental Notice of Proposed Rulemaking, Exchange Act Release No. 11,328 (Feb. 11, 1975), 40 Fed.Reg. 16,090, 16,090 (Apr. 9, 1975) ("Supplemental 1974 Proposed Rule”). The SEC withdrew the rule, however, because the tie-in arrangements prohibited by it were already prohibited by "existing antifraud and anti-manipulation provisions of the federal securities laws.” Withdrawal of Proposed Rules Under the Securities Exchange Act of 1934, Exchange Act Release No. 26,182 (Oct. 14, 1988), 53 Fed.Reg. 41,206, 41,207 (Oct. 20, 1988) ("1988 Withdrawal”); see also 2004 Proposed Amendments, 69 Fed.Reg. at 75,784.
. See 2 Hazen, supra § 6.3[2][A], at 30-31 ("Under this manipulation, registered representatives ... require or encourage customers to commit to purchasing shares in the after market in order to get part of the allotment out of the original issue.”); id. § 6.3[2][A], at 34-35 & n. 68; NASDR, Disciplinary Actions Reported for April,
.In 1961, the SEC addressed the impropriety of aftermarket pre-sale tie-in arrangements. See Securities Act Release No. 4358, Exchange Act Release No. 6536,
.In its Hot Issues Markets report, the SEC pointed to its 1961 statement, Securities Act Release No. 4358, Exchange Act Release No. 6536,
. The IPOs of these companies’ securities range from March 1997 to December 4, 2000, and the securities' issuers include Amazon.com, eBay Inc., Priceline.com Inc., Red Hat Inc., and Global Crossing, among many others.
. The defendant firms are Bear, Sterns & Co., Inc., Credit Suisse First Boston Corp. (“CSFB”), Deutsche Bank Alex. Brown, Goldman, Sachs & Co., J.P. Morgan Chase & Co., Lehman Brothers, Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch”), Morgan Stanley & Co., Inc., Robertson Stephens, Inc., and Salomon Smith Barney, Inc.
. For instance, plaintiffs Michele and Bill Lucia purchased 50 shares of Infonet Services Corp. common stock and 25 shares of Buy. com Inc. directly from Merrill Lynch as part of the Infonet IPO and Buy.com IPO respectively. In both cases, Merrill Lynch allegedly required the Lucia's to agree to purchase additional shares of the respective securities in the aftermarket at inflated prices and subject to excessive commissions.
. The underwriter defendants are CSFB, Goldman, Sachs & Co., Lehman Brothers, Inc., Merrill Lynch, Morgan Stanley Dean Witter & Co., BancBoston Robertson, Stephens, Inc., and Salomon Smith Barney, Inc. The institutional defendants are Fidelity Distributors, Fidelity Brokerage Services LLC, Fidelity Investments Institutional Services Co., Inc., Janus Capital Corp., Comerica, Inc., Van Wagoner Capital Management, Inc., and Van Wagoner Funds, Inc.
. Section 2(b) of the Securities Act provides: Consideration of Promotion of Efficiency, Competition, and Capital Formation. — Whenever pursuant to this title the Commission is engaged in rulemaking and is required to consider or determine whether an action is necessary or appropriate in the public interest, the Commission shall also consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.
Securities Act § 2(b) (as amended by the National Securities Market Improvement Act of 1996 ("NSMIA”), Pub.L. No. 104-290, § 106(a), 110 Stat. 3416, 3424) (codified at 15 U.S.C. § 77b(b)). Section 3 of the Exchange Act and section 2 of the Investment Company Act of 1940 contain similar provisions. See Exchange Act § 3(f) (as amended by NSMIA § 106(b),
. “The term 'self-regulatory organization’ means any national securities exchange, registered securities association, or registered clearing agency ...." Exchange Act § 3(f) (as amended) (codified at 15 U.S.C. § 78c(a)(26)).
. The Ninth Circuit's opinion in Phonetele the holding of which accords with our opinion in Northeastern Telephone Co. v. American Telephone and Telegraph Co.,
. “[T]he very purpose of an exchange is to exclude nonmembers from participation in trading. Were it not for the legislative authorization of such exchanges, they would constitute group boycotts that are per se violations of the Sherman Act.” Ricci v. Chicago Mercantile Exch.,
. The Court noted that, under the Act, the Comptroller could "not give his approval [over a merger] until he has received reports from the other two banking agencies [ (the Federal Deposit Insurance Corporation and the Federal Reserve System)] and the Attorney General respecting the probable effects of the proposed transaction on competition.” Id. at 332.
. At the time that Philadelphia National Bank was under consideration, section 7 provided that [n]o corporation ... shall acquire ... the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.
. Even the dissent found the legislative history of predominant import; it simply read the legislative history differently. See id. at 390-91 n. 7,
. To be precise, the Court first discovered Silver’s "different case” in Ricci v. Chicago Mercantile Exchange,
. Section 19(b) of the Act as originally enacted provided the Commission with express authority to alter exchange rules "in respect of ... the fixing of reasonable rates of commission.” Securities Exchange Act § 19(b)(9),
. This Court noted "that the history of the Bank Merger Act evidenced a congressional intent not to immunize bank mergers from at least Sherman Act attack, whereas the 1934 Act entrusts the SEC with supervision of rate-fixing, a practice which outside the confines of the 1934 Act is a per se violation of the Sherman Act.” Id. at 1310-11 n. 11 (citations omitted).
. Additionally, the Court noted that "it seem[ed] to us ... that when something as crucial to the survival of the securities industry as its very ancient rate structure is at stake, diagnoses and changes must come from an agency with the Commission’s expertise.” Id. at 1309.
. In a footnote, the Court explained that, although the SEC had never issued a formal order requiring fixed rates, its actions had "an effect equivalent to that of a formal order.” Id. at 689 n. 13,
.
Courts have discerned two major types of antitrust conspiracies to restrain trade: horizontal and vertical. Horizontal conspiracies involve agreements among competitors at the same level of competition to restrain trade, such as agreements among manufacturers to fix prices for a given product and geographic market, or among distributors to fix prices for a given market. Vertical conspiracies, on the other hand, involve agreements between competitors at different levels of competition to restrain trade, such as agreements between a manufacturer and its distributors to exclude another distributor from a given product and geographic market.
JLM Indus., Inc. v. Stolt-Nielsen SA,
. A conclusion to the contrary would have left broker-dealers with competing mandates. If they maintained a uniform price, they could violate antitrust laws, but if they did not, they could violate the Investment Company Act. The parties' concession comports with the second insight of the Gordon Court.
. See also Phonetele,
. The district court decision affirmed by the NASD Court found it "apparent that Congress designed [section 22] to create and protect a primary distribution system which is repugnant to the antitrust laws and did so in complete recognition of the fact that the legislation would frustrate the growth of a free secondary market.” In re Mutual Fund Sales Antitrust Litig.,
.The Court noted that the SEC "repeatedly ha[d] recognized the role of private agreements in the control of trading practices in the mutual-fund industry" and had even "looked to restrictive agreements similar to those challenged in th[e] litigation [and] ... [a]t no point did it intimate that those agreements were not legitimate.” NASD,
. As support, the Court relied in part on a footnote in a 1940 opinion by Justice Douglas that stated:
[T]he typical method adopted by Congress when it has lifted the ban of the Sherman Act is the scrutiny and approval of designated public representatives.... [S]ee the Ma-loney Act providing for the formation of associations of brokers and dealers with approval of the Securities and Exchange Commission and establishing continuous supervision by the Commission over specified activities of such associations.
United States v. Socony-Vacuum Oil Co.,
. In Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP,
.
The [Federal Communications Act] provides for the regulation of telecommunications common carriers by the FCC and requires carriers to file tariffs with the FCC covering ‘practices' as well as charges. Before changing any of its practices by filing a new tariff, the carrier must give ninety days notice to the FCC and the public. The requirement that carriers file tariffs is the primary mechanism of regulation. Once a tariff becomes effective, the carrier is required to adhere to its provisions.
Phonetele,
. Flipping is the practice of reselling securities shortly after purchasing them in an IPO, Friedman,
. The Friedman court saw a direct analogy to NASD. See id. at 800 ("The facts in NASD are analogous to the case at bar .... ”). This reference was appropriate because the second half of NASD dealt with a situation in which, inter alia, private individuals were charged with a conspiracy to engage in activities immunized by statute and permitted by SEC regulations. See NASD,
. Our opinion also included a block quote from the NASD Court’s discussion of a "pervasive” regulatory scheme.
. From a purely textual standpoint, within the word "permit” lurks the danger of assuming away the entire immunity analysis. The word has two possible meanings, one purely descriptive and the other functional, stating a legal conclusion. As a descriptor, permit denotes an agency’s act of express or silent approval of some course of conduct. This descriptive use is generally consistent with this Court's and the Supreme Court's use of the verb in precedent. See, e.g., NASD,
But the word "permit” — or its sister verbs "authorize” and "allow” — could also be understood as an equivalent to the verb "immunize”; to permit the conduct despite the antitrust laws. In this sense it states a legal conclusion — that the SEC immunizes the conduct. We disclaim that usage of the verb here, and we do so to prevent readers from attributing a legal conclusion to a mere recitation of fact. Our use of the word "permit” is thus limited to describing what actions an agency authorizes under its regulatory regime, not, as the ultimate issue may be, under the antitrust laws. Whatever the merits of an immunity doctrine in which agency permission is the endpoint of analysis — and precedent does not support that doctrine, see Otter Tail Power,
. The Friedman Court also noted that, soon after the passage of the Exchange Act, the SEC indicated its understanding that "anti-competitive practices were lawful in the absence of SEC regulation.”
. The Ninth Circuit has made the same insight. See Phonetele,
. This was a guiding principle for the Supreme Court majority in Bob Jones University v. United States,
. Although neither logically compelled nor universally true, it is probably fair to say that Congress is more likely to have contemplated repealing the antitrust laws with regard to anticompetitive conduct that at some point has been permitted by the SEC than conduct that has never been permitted. This inference flows from the fact that the concerns of an expert agency created by Congress are likely to share many of the concerns of the Congress that created it. Cf. NASD,
It has also been suggested that "it would hardly be irrational for Congress to make antitrust immunity,” at leas! in some circumstances, "depend on whether an agency actively supervised the challenged conduct,” 1A Areeda & Hovenkamp, supra, at 43; cf. Gordon,
. This list is merely an expansion on the one we provided in Northeastern Telephone Co. In that case, Judge Kaufman explained, "Whenever claims of implied immunity are raised, they must be evaluated in terms of the particular regulatory provision involved, its legislative history, and the administrative authority exercised pursuant to it.”
. Defendants also argue that immunity is appropriate with regard to the allegations arising in the consolidated complaint because the complaint details a host of conduct recognized as legitimate by the SEC — in particular, the use of syndicates and the book-building process. According to defendants, “If implied immunity were denied, plaintiffs would be free to attempt to establish their allegations of an unlawful conspiracy based on inferences from conduct that the SEC views as essential to capital formation.” Defendants, however, cite no legal support for their argument, which essentially posits that implied immunity should apply whenever the eviden-tiary basis for an antitrust claim includes legitimate activity. Defendants ask us to conclude that, where the securities laws do not imply the repeal of the antitrust laws with regard to particular illegitimate anticompeti-tive conduct, the conduct nonetheless might gain immunity based on the mode of proof. We see no basis for grounding the immunity analysis in evidentiary considerations; the immunity question, after all, is whether "Congress has made a judgment that [certain] restrictions on competition” should be free from antitrust regulation. NASD,
. The SEC prohibits tie-in arrangements under those general provisions. See supra note 10.